UIC Law Review Volume 52 Issue 2 Article 2 2019 Can Accessibility Liberate The "Lost Ark" of Scholarly Work?: University Library Institutional Repositories Are "Places of Public Accommodation”, 52 UIC J. Marshall L. Rev. 327 (2019) Raizel Liebler UIC John Marshall Law School, [email protected] Gregory Cunningham UIC John Marshall Law School Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Archival Science Commons, Collection Development and Management Commons, Communication Technology and New Media Commons, Computer Law Commons, Disability Law Commons, Disability Studies Commons, Education Law Commons, Information Literacy Commons, Internet Law Commons, Law and Society Commons, Law Librarianship Commons, Legal Education Commons, Legal Writing and Research Commons, Scholarly Communication Commons, Scholarly Publishing Commons, Science and Technology Law Commons, Science and Technology Policy Commons, Science and Technology Studies Commons, and the Technology and Innovation Commons Recommended Citation Raizel Liebler & Gregory Cunningham, Can Accessibility Liberate The "Lost Ark" of Scholarly Work?: University Library Institutional Repositories Are "Places of Public Accommodation”, 52 UIC J. Marshall L. Rev. 327 (2019) https://repository.law.uic.edu/lawreview/vol52/iss2/2 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. CAN ACCESSIBILITY LIBERATE THE "LOST ARK" OF SCHOLARLY WORK?: UNIVERSITY LIBRARY INSTITUTIONAL REPOSITORIES ARE "PLACES OF PUBLIC ACCOMMODATION” RAIZEL LIEBLER AND GREGORY CUNNINGHAM* I. INTRODUCTION .......................................................... 328 II. UNIVERSITY LIBRARIES, OPEN ACCESS, INSTITUTIONAL REPOSITORIES, AND POLICY ... 330 A. Accessibility and the Role of University Libraries .330 B. Open Access ..............................................................332 C. Institutional Repositories ........................................333 D. University Policy, Mandates, and Statutes ............334 III. ACCESSIBILITY STANDARDS AND UNIVERSAL DESIGN FOR WEBSITES ............................................ 336 A. Thinking About Accessibility and Websites ...........336 B. Standards and Principles .........................................338 C. Getting to Accessibility for Institutional Repositories ...................................................................................338 IV. ADA BACKGROUND ......................................................... 340 A. Americans with Disabilities Act, 42 U.S.C. § 12101 General History ........................................................340 B. Public Accommodation .............................................341 C. Applicability to Universities and Libraries ............342 V. TITLE III DISCRIMINATION STANDARDS APPLYING TO WEBSITE ACCESSIBILITY ................................................. 342 A. Caselaw .....................................................................342 1. First Circuit ........................................................343 2. Seventh Circuit ..................................................344 3. Second Circuit ....................................................344 4. Ninth Circuit ......................................................346 5. Eleventh Circuit .................................................347 6. Other Circuits ....................................................348 B. University-based ADA claims ..................................348 VI. INSTITUTIONAL REPOSITORIES ARE PUBLIC ACCOMMODATIONS AND NEED TO BE ACCESSIBLE ......................................................................................... 350 A. Practical Problems ...................................................350 B. How to Ensure that University Institutional Repositories are Accessible Through Policy and Procedure ..................................................................353 VII. CONCLUSION ............................................................... 353 Abstract For any body of knowledge – an ark of power or a corpus of scholarship – to be studied and used by people, it needs to be accessible to those seeking information. Universities, through their libraries, now aim to make more of the scholarship produced available for free to all through institutional repositories. However, the goal of being truly open for an institutional repository is more 327 328 UIC John Marshall Law Review [52:327 than the traditional definition of open access. It also means openness in a more general sense. Creating a scholarship-based online space also needs to take into consideration potential barriers for people with disabilities. This article addresses the interaction between the Americans with Disabilities Act (ADA) and university academic library based institutional repositories. This article concludes that institutional repositories have an obligation to comply with the ADA to make scholarly works available to potential users with disabilities. For managers of institutional repositories, following the law is an opportunity to make scholarship even more widely available. University open access institutional repositories need to be accessible to existing and potential disabled users. However, there are no specific rules that university institutional repositories must follow to be compliant with the ADA’s “public accommodation” standard. Accessibility is a changeable, moveable wall, consistently and constantly needing to be additionally inclusive of more – more technology and more users, regardless of disability or limitations. Institutional repositories should not become the crated Ark of the Covenant with their secrets locked inside; instead, they should be as open as possible to all, sharing the scholarship inside. I. INTRODUCTION For any body of knowledge – an ark of power or a corpus of scholarship – to be studied and used by people, it needs to be accessible to those seeking information. In the film Raiders of the Lost Ark, a priceless Biblical artifact, the Ark of the Covenant, is discovered – and promised to be displayed publicly.1 However, the promise of making this cultural heritage publicly available to the world is betrayed, with all of the potential knowledge locked away in an archive.2 Instead of being an archive that makes information * Raizel Liebler, Instructor of Law & Faculty Scholarship Librarian, UIC John Marshall Law School, University of Illinois at Chicago (ORCID: https://orcid.org/0000-0002-4876-8006); Gregory Cunningham, Instructor of Law & Associate Director for Access & Organization, UIC John Marshall Law School, University of Illinois at Chicago. We thank Darrin Grelle and Keidra Chaney for their continual encouragement. A special thanks to Sandi Tanoue who has been an excellent editor to this article. 1. RAIDERS OF THE LOST ARK (Lucasfilm 1981); “A deal is struck between Indiana Jones and the U.S. military establishment that if Indiana Jones can stop the Nazis from acquiring the Ark, it will go on display in the museum of the University where Indiana Jones works.” Lucas Lixinski, Moral, Legal and Archaeological Relics of the Past: Portrayals of International Cultural Heritage Law in Cinema, 4 LONDON REV. INT'L L. 421, 429 (2016). 2. Zambito v. Paramount Pictures Corp., 613 F. Supp. 1107, 1110 (E.D.N.Y.), aff'd, 788 F.2d 2 (2d Cir. 1985) (“A s the film closes, we see the crated Ark being transported to an army warehouse where, among thousands of other identical crates, it will lie forever forgotten.”). 2019] University Library Institutional Repositories 329 available, the Ark sits deliberately forgotten, with its secrets locked inside.3 In a less fictionalized way, universities, through their libraries, now aim to make more of the scholarship produced available for free to all through institutional repositories. An institutional repository is an online digital library that “captur[es] and preserv[es] the intellectual output of a single or multi-university community.”4 To be an institutional repository, this archive of the intellectual output of an institution must be “accessible to end users both within and outside of the institution, with few if any barriers to access. In other words, the content of an institutional repository is: Institutionally defined; Scholarly; Cumulative and perpetual; and Open and interoperable.”5 Open in this context frequently means “open access”, defined as “the free, immediate, online availability of research articles, coupled with the rights to use these articles fully in the digital environment.”6 However, the goal of being truly open for an institutional repository is more than open access. It also means openness in a more general sense. Creating a scholarship-based online space also needs to take into consideration potential barriers for people with disabilities.7 As Meryl Alper stated, “Efforts to better include individuals with disabilities within society [] rarely take into account all the other ways in which culture, law, policy, and even technology itself can also marginalize and exclude.”8 For managers of institutional repositories, following the law is an opportunity to make scholarship even more widely available. As Sarah Horton and Whitney Quensenbery stated, instead of viewing 3. Carla Scherr, You Better Watch Out, You Better Not Frown, New Video Surveillance Techniques Are Already in Town (and Other